By:  Ty Hyderally, Esq., Francine Foner, Esq

On May 4, 2009, Amy Foster (Foster), a registered nurse, began working for Kennedy University Hospital, Inc. (d/b/a Jefferson Health — New Jersey and Jefferson Cherry Hill Hospital).  Foster suffers from Ehlers-Danlos syndrome.[1]  Due to her disability of Ehlers-Danlos syndrome, Foster sought and was granted intermittent leave under the FMLA.  On August 5, 2019 and October 8, 2019 Foster used or requested FLMA leave. On October 1, 2019 and October 21, 2019, Foster was suspended without pay, and then terminated on November 8, 2019.

On March 4, 2020, Foster sued her former employer in New Jersey Superior Court, asserting that the hospital had interfered with her rights under the federal Family and Medical Leave Act (FMLA) and retaliated against her for taking FMLA leave.  Foster further claimed that the hospital violated the New Jersey Law Against Discrimination (LAD) by discriminating against her because of her disability and retaliating against her for taking medical leave due to her disability.  Defendants removed the case to the United States District Court for the District of New Jersey. Foster v. Kennedy Univ. Hosp., Inc., 2022 U.S. Dist. LEXIS 134558, *8 (D.N.J. July 28, 2022).

Defendants asserted that Foster had a history of unsatisfactory work performance for which she was issued a series of written warnings and documented counseling sessions over a period of eight years. Id. at *2-3. In addition, Defendants raised three incidents in which Foster was involved between May 2019 and October 2019, involving alleged patient interactions and care. Foster disputed all of these assertions. Defendants moved for summary judgment to dismiss Foster’s claims for interference and retaliation under the FMLA and discrimination and retaliation under the LAD.

The Court first observed that for Foster to establish a prima facie FMLA interference claim, Foster need only show that she was entitled to FMLA benefits and was denied the same.  The District Court further observed that “’firing an employee for a valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee.’” Id. at *11-12, citing, Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009).  The Court held that because there was an issue of material fact concerning whether Defendants interfered with Foster’s use of her FMLA leave when she was terminated, summary judgment should be denied on Foster’s FMLA interference claim. Id. at 12.

The Court next explained that to establish a prima facie claim for retaliation under the FMLA, Foster was required to show: (1) she is protected under the FMLA, (2) she suffered an adverse employment action, and (3) the adverse action was causally related to Foster’s exercise of her protected leave rights. Id. at *13. There was no dispute that Foster had engage in protected activity under the FMLA.  As to an adverse employment action, the Court defined an “adverse employment action” as one which “is ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different job responsibilities, or a decision causing a significant change in benefits.’” Id. at *14. While the Court found that a written warning was not sufficient to constitute an adverse employment action, it held that Foster suffered adverse employment actions when she was suspended without pay, pending Defendants’ investigation. In addition, although Foster had attempted to tender her resignation, which would not qualify as an adverse employment action, because Defendants refused to accept her resignation during their investigation, the termination constituted an adverse employment action.

The Court then considered whether there was a causal relationship between Foster’s protected activity under the FMLA and the adverse employment actions. In doing so the Court recognized that demonstrating a causal connection requires showing either “‘(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.’” Id. at *20, citing Fitzgerald v. Shore Mem’l Hosp., 92 F. Supp. 3d 214, 233 (D.N.J. 2015) (quoting Budhun v. Reading Hosp. and Med. Ctr., 765 F.3d 245 (3d Cir. 2014)).  Further, in considering these factors the Court recognized its obligation to view the evidence in a light most favorable to Plaintiff and to draw inferences in Plaintiff’s favor. In making this assessment, the Court concluded that there was an issue of material fact concerning “who knew what” with respect to Foster’s FMLA leave and therefore a factual dispute concerning the causal connection element of Foster’s FMLA retaliation claim.

The Court then discussed Defendants’ articulated nondiscriminatory reasons for their suspensions and termination of Foster, which were that the adverse actions were warranted because of Foster’s alleged violations of Defendants’ policies.  Because Defendants provided purported legitimate nondiscriminatory reasons for Foster’s termination, the Court observed that the burden then shifted to Foster to demonstrate that those reasons were merely a pretext for retaliation under the McDonnell Douglas analysis. Id. at *22.  The Court found that Foster met that burden as she had provided sufficient evidence from which a reasonable jury could find that Defendants’ purported legitimate reasons were a pretext for retaliation. As the Court opined: “Plaintiff presents facts to support her conduct and to question whether the consequences she was subjected to were in fact appropriate.” Id. at *24. Therefore, the Court denied summary judgment on Foster’s claims of interference and retaliation under the FMLA.

The Court next considered Plaintiff’s claims of discrimination and retaliation under the LAD. The Court observed that to establish a prima facie case of discrimination under the LAD Foster was required to show: (1) she has a disability or is perceived by the employer as disabled; (2) she was qualified for the position from which he or she was discharged; (3) she has suffered an adverse employment action because of that disability; and (4) the employer sought someone else to do the same work. Id. at *26-27.

The Court agreed that Plaintiff’s medical condition was a disability under the LAD.  However, the Court did not discuss any of the other elements.  Rather, the Court then dismissed Foster’s claims of actual and perceived disability discrimination because there was no evidence presented that her supervisor had knowledge of Foster’s medical condition.  However, the Court agreed that a jury should hear Foster’s LAD retaliation claims, based upon the same analysis that the Court used for its assessment of Foster’s FMLA retaliation claim.

This opinion makes clear that an employee’s claims for violation of their rights under the FMLA and LAD are not automatically foreclosed because the employer asserts there were purported non-discriminatory reasons for adverse actions taken against the employee. However, employees who seek accommodations for their disability, including medical leave, should be cautioned to document their putting their superiors on notice of their specific medical condition, in case they need to subsequently take legal action for disability discrimination and/or retaliation under the LAD.

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[1] “The Ehlers-Danlos syndromes (EDS) are a group of hereditary disorders of connective tissue that are varied in the ways they affect the body and in their genetic causes. The underlying concern is the abnormal structure or function of collagen and certain allied connective tissue proteins….  Pain and fatigue are almost universal in the Ehlers-Danlos syndromes. Clinical manifestations of an EDS are typically joint and skin related.” https://www.ehlers-danlos.com/what-is-eds/